Boston College can’t keep IRA materials confidential

A federal appeals court has upheld a lower court’s ruling ordering Boston College to turn over confidential materials from its Belfast Oral History Project on Northern Ireland, dealing a blow to researchers’ efforts to honor their agreement of secrecy with former IRA members.

The decision by the US Court of Appeals for the First Circuit was released Friday and reinforces subpoenas from the British government that would force BC to release specific papers and inter­views conducted by ­researchers. Two of the academic researchers in the appeal were project director Ed ­Moloney and former Irish ­Republican Army member ­Anthony McIntyre.

BC and the researchers can now seek a rehearing by the court or take the case to the US Supreme Court. A spokesman for BC could not be reached for comment Friday night.

“We’re very disappointed,” James Cotter III, one of Moloney and McIntyre’s lawyers, said Friday night. “And I’m disappointed personally for our clients, who have been through quite a bit.”

Cotter also expressed worry about Moloney and McIntyre’s safety once the interviews are released to the British government. “That’s the real concern for us,” he said.

Eamonn Dornan, another lawyer for the researchers, has said that regardless of the guaranteed secrecy of the interviews, the IRA could view ­Moloney and McIntyre as informants and target them and their families for violence.

Dornan has also said that the release of the records would have a chilling effect on future academic research in the ­United States.

The BC Belfast Project began in 2001 with the goal of documenting The Troubles, a decades-­long period of violence and conflict in Northern ­Ireland.

Taped interviews, recorded between 2001 and 2006, were conducted with members of the Provisional Irish Republican Army, as well as with other paramilitary and political organizations, and were to be ­restricted until the interviewees had died or given permission, the documents stated.

The appeals court decision Friday was partially based on a mutual legal assistance treaty between the United States and the United Kingdom that went into effect in 1996. The appeals court upheld a district court’s denial of a motion to quash the subpoenas filed by BC.

“We are pleased that the court recognized that the treaty between the UK and the US, as with other such treaties ­designed to facilitate assistance between sovereign nations in obtaining documents and evidence, as well as taking testimony or seizing proceeds of crimes, creates no private rights for individuals, but is intended solely for mutual legal assistance between countries,” the US Department of Justice said in a statement Friday night.

Two sets of subpoenas were issued to BC to turn over the project information in May and August 2011 by the British government in efforts to aid the UK investigation of the 1972 ­abduction and death of Jean McConville, court documents stated.

“Fortunately for this court’s panel — but unfortunately for the appellants — the Supreme Court has already done the ­lion’s share of the work for us,” wrote Torruella. “Under the mutual legal assistance treaty between the United States and the United Kingdom, the federal government has assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters — here, a homicide — to the ­extent permitted by US law.

“Finally, with regards to the district court’s denial of the ­appellants’ motion to intervene. . . . I harbor doubts as to whether Boston College could ever ‘adequately represent’ the interests of academic researchers who have placed their personal reputations on the line, exposing both their livelihoods and well-being to substantial risk in the process.”

Cotter, one of the researchers’ lawyers, said the legal team will meet to plan their next ­actions.

The American Civil Liberties Union of Massachusetts aided Moloney and McIntyre in their efforts to protect the release of confidential information from the Belfast Project.

“We were very disappointed to see the attached opinion ­issued this afternoon by the First Circuit,” the ACLU said in a statement.

“They’re hugely concerned about their personal safety and that of their families,” said Jon Albano, a cooperating lawyer with the ACLU of Massachusetts and who frequently represents the Boston Globe. Albano also echoed Dornan’s concerns about a chilling effect on academic projects.

“Isn’t this going to inhibit very worthwhile historical ­research projects?” he asked.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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